Moving in temporary residents
The category of “temporary residents” has a completely different legal status than that of the tenant and his family under a social rental agreement. To study the nuances in more detail, you should refer to the very definition of “temporary residents”.
So, temporary residents are third parties who, in addition to the tenant and representatives of his family living in a certain residential area, under the terms of the Housing Code of the Russian Federation, have the right to temporarily stay in an apartment allocated under a social tenancy agreement on a free basis. Moreover, it should be noted that the presence of family ties does not have any significance here.
Of course, moving temporary residents into the territory of social housing implies adherence to established principles by all parties to legal relations. In particular, the move-in of temporary residents becomes possible if two mandatory conditions are met:
- consent has been obtained from the employer and each member of his family circle. This rule is spelled out in more detail in the Resolution of the Plenum of the RF Armed Forces under No. 14;
- the landlord received preliminary notice of the tenant's intentions to allow temporary residents to stay in an apartment or room in a communal apartment under a social tenancy agreement.
It is worth noting that temporary residents can be settled on the territory of real estate without the permission of the landlord, since such a principle is not enshrined in the legislation of the Russian Federation. The only thing the landlord can do in such situations is to speak out against the move-in of this category of citizens if the principle of compliance with the accounting norm per capita is violated. In other words, if the accounting norm is within the acceptable limits, then temporary residents can safely live on the territory of a building allocated by government agencies or the municipality.
Preservation of rights to residential premises in the temporary absence of the tenant and (or) members of his family
According to Art. 71 of the Housing Code of the Russian Federation, the rights and obligations of a temporarily absent employer and members of his family do not change. (Although local self-government regulations may establish a recalculation procedure)
The rights of temporarily absent persons must be respected when performing all legally significant actions, this is evidenced not only by Article 71 of the RF Housing Code; the legislator specifically stipulates these provisions in the rules governing certain rights and obligations of the employer and members of his family.
The Housing Committee refused to establish any period of temporary absence or clarify its reasons.
History of the development of the institute: Previously existing Housing Complex of the RSFSR 1983. contained Art. 60, which provided for the possibility of maintaining one’s rights in case of temporary absence only for 6 months. In Part 2 of Art. 60 listed cases when the employer and members of his family retained their rights for longer periods, for example, when going to work abroad, to the Far North, while staying in medical institutions, the right to use was retained for the entire duration of work or stay in such institutions, but for those sentenced to imprisonment in paragraph 8, a 6-month period was established, regardless of the term of conviction, therefore the initiative to appeal to the Constitutional Court of the Russian Federation to recognize these norms as inconsistent with the Constitution of the Russian Federation came precisely from the convicted. As a result, Resolution of the Constitutional Court of the Russian Federation dated June 23, 1995 No. 8-P, Part 1 and Clause 8, Part 2, Art. 60 of the RSFSR Housing Code were found inconsistent with the Constitution of the Russian Federation and from that moment the entire article as a whole ceased to be applied. However, it should be remembered that the Resolution of the Constitutional Court of the Russian Federation extended its effect to those relations that arose after its adoption
It has become impossible to recognize a person as having lost the right to housing under a social tenancy agreement in the event of his temporary absence, even without good reason. The only reason is to move to another permanent place of residence.
This approach of the legislator has both its advantages and disadvantages; on the one hand, the norm ensures the stability of rights of use, on the other hand, it paralyzes the administrative actions of residents living in residential premises. Whether the absent person has lost family ties with the residents, whether he has formed a new family, whether he is provided with another living quarters, the norms of this article do not allow changing his rights and obligations and the fact that all administrative powers (exchange, move-in, replacement) are subject to agreement with him. this may negatively affect the lifestyle of the remaining residents and the ability to make the decisions they need.
According to paragraph 32 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 14: In the temporary absence of the tenant of the residential premises and (or) members of his family, including former family members, they retain all rights and obligations under the social tenancy agreement for residential premises (Article 71 of the Housing Code of the Russian Federation) . If the absence of these persons from the residential premises is not temporary, then interested parties (landlord, tenant, members of the tenant’s family) have the right to demand in court that they have lost the right to residential premises on the basis of Part 3 of Article 83 of the Housing Code of the Russian Federation in connection with leaving for another place of residence and thereby terminating the social tenancy agreement. When resolving disputes about recognizing a tenant, a family member of a tenant or a former family member of a tenant of a residential premises as having lost the right to use residential premises under a social tenancy agreement due to their constant absence from the residential premises due to leaving it, the courts must find out: for what reason and for how long the defendant is absent in the residential premises, whether his departure from the residential premises is forced (conflictual relationships in the family, divorce) or voluntary, temporary (work, training, treatment, etc.) or permanent (took out his things, moved to another locality , entered into a new marriage and lives with a new family in another residential premises, etc.), whether there were any obstacles to him in using the residential premises from other persons living in it, whether the defendant acquired the right to use another residential premises in a new location residence, whether he fulfills his obligations under the contract to pay for housing and utilities, etc.
If the court establishes circumstances indicating the voluntary departure of the defendant from the residential premises to another place of residence and the absence of obstacles in the use of the residential premises, as well as his unilateral refusal of rights and obligations under the social tenancy agreement, a claim to recognize him as having lost the right to residential premises are subject to satisfaction on the basis of Part 3 of Article 83 of the Housing Code of the Russian Federation in connection with the termination of the social tenancy agreement by the defendant in relation to himself.
The absence of a citizen who voluntarily left a residential premises for another place of residence, in the new place of residence, the right to use residential premises under a social tenancy agreement or the right of ownership of residential premises cannot in itself be a basis for recognizing the absence of this citizen in the disputed residential premises as temporary , since, according to Part 2 of Article 1 of the Housing Code of the Russian Federation, citizens, at their own discretion and in their own interests, exercise their housing rights. A citizen’s intention to refuse to use residential premises under a social tenancy agreement can be confirmed by various evidence, including certain actions, collectively indicating such an expression of will of the citizen as a party to the residential tenancy agreement.
Registration of temporary residents
The residence of temporary residents in residential premises provided under a social tenancy agreement requires notification of the authorities authorized to carry out registration of citizens. This is stated in Art. 80 Housing Code of the Russian Federation.
Often in legal practice, disputes arise between tenants, lessors and temporary residents, which are resolved in courts. But in this case, even if a temporary resident is registered at the address of his current residence, this does not entail any legal consequences. In other words, the emergence of housing rights in such situations by independent disposal and ownership of property does not occur. But, nevertheless, registration of a temporary tenant obliges him to comply with all the conditions and procedures for using allocated housing under a social tenancy agreement, fixed by law.
About temporary housing provided by the state
An apartment is sold for debts, a house is undergoing major repairs (reconstruction), a home is washed away by a flood or demolished by a hurricane - there are a huge number of reasons why people can suddenly lose their only home.
For its citizens, our state has a certain supply of free apartments for temporary residence, called “residential premises of the maneuverable fund.” This is exactly how they are named in Article 95 of the RF Housing Code .
Illustration: Evgeniya Remizova
What is a maneuver fund?
It is important to understand that the maneuverable fund is a type of so-called specialized residential premises (Articles 92, 99-103 of the Housing Code of the Russian Federation), which include (using the example of Chapter 6 of the Fundamentals of Moscow Housing Policy):
1) service residential premises;
2) living quarters in dormitories;
3) residential premises of the maneuverable fund;
4) residential premises in houses of the social service system;
5) residential premises of the fund for temporary settlement of internally displaced persons;
6) residential premises for temporary settlement of persons recognized as refugees;
7) residential premises for social protection of certain categories of citizens (disabled people, orphans, etc.).
To create a specialized fund, the state (represented by federal or regional authorities) reserves a certain number of apartments/houses/rooms in hostels, of which part is allocated for a flexible fund - a strict purpose. It, in turn, can only be claimed by a few categories of citizens in certain cases:
- if your home, rented under a social tenancy agreement, is subject to reconstruction or major repairs (if the housing is privatized and the house is destroyed, then citizens are registered as “in need of housing”);
- if you lost your home as a result of an emergency;
- if your apartment was purchased on credit, but you are unable to service the debt. Then the bank sells the apartment, and if it was your only home, then during the sale you may be provided with housing from the flexible fund;
- other categories of citizens, which often include refugees and internally displaced persons who have no other housing. Their resettlement is described within the framework of the laws of the Russian Federation “On Forced Migrants” and the Federal Law “On Refugees” (their fund is formed from the federal budget).
Flexible housing is provided on a first-come, first-served basis
Also keep in mind that in many regions there is no maneuver fund at all, because there are not enough available funds in the budget. In such cases, you will most likely only be put on a waiting list for temporary housing.
The decision to provide temporary housing is made by regional authorities and they enter into an appropriate agreement, which, in its terms, is very similar to a social rental agreement and can be extended if necessary. One of the mandatory conditions of the contract is that the premises comply with sanitary standards for permanent residence (minimum 6 m2 per person - dormitory standards) and the state covers all expenses for moving to a temporary apartment and back.
We also note that by virtue of clause 2 of Article 99 of the Housing Code of the Russian Federation, residential premises of the maneuverable fund (as well as other “specialized” houses/apartments) are provided to citizens who do not have a home, precisely in the corresponding locality
, and must be comfortable in relation to living in a specific geographical area. That is, a migrant from Krasnodar cannot be allocated a house in a Siberian town just because there is free housing there with an area of more than 6 m2 per person. Housing should be provided specifically in Krasnodar.
For what period is the contract concluded?
The maneuver fund is temporary because it is provided for a certain period, which is individual for each category of immigrants:
- when relocating due to major repairs or reconstruction of a house, the period of residence is established until the completion of the work;
- in case of loss of housing in the event of an emergency, the period is usually set before the provision of state or municipal housing within the framework of social rent;
- in the case of a loan - until settlements with citizens are completed after the sale of their previous home.
At the end of the contract, residents must vacate the premises within a month and hand it over in accordance with the act, safe and sound. The parties can always terminate the contract in advance by mutual agreement, or the municipality has the right to evict a temporary tenant in case of gross violation of the rules of the contract (does not pay rent for more than 6 months, destroys the premises, violates the rights of neighbors or uses the premises for other purposes).
What can you do with the housing provided?
Just live in it and pay the rent. By the way, its size is set at the rental level of municipal housing and, as a rule, does not exceed 800-1000 rubles per month, for which you can even get subsidies. In addition, a number of restrictions are imposed on residents that do not allow them to privatize an apartment, exchange it, rent it out, share it, or move temporary residents there.
Eventually
Unfortunately, the law does not specify the mechanism for obtaining such temporary housing, as well as the time frame within which it must be provided - only the text of the contract and the understanding that you need to take the initiative and independently contact the administration of the locality. It turns out that if there is a waiting list for housing, but there are no available apartments, then people will have to get out on their own for some time. Moreover, the decision to provide housing is made by a special commission, which still needs to be appointed, assembled and given time to familiarize itself with all the materials, and they may refuse. In addition, there were cases when, instead of temporary funds, those in need were provided with hotel rooms.
Andrey Shenin
28.04.2016
Length of stay for temporary residents
According to Art. 80 of the Housing Code of the Russian Federation, namely clause 2, the period of residence of temporary residents cannot exceed a period equal to 6 months in a row. Before the adoption of the modern Code regulating housing issues, such a period was not established. Accommodation of temporary residents for a period of more than 1.5 months became possible only if the accounting norm was met.
After the period of stay has passed, temporary residents undertake to move out of the premises (registration does not play a role here) no later than 7 days have passed from the date of presentation of this requirement by the tenant or one of his family members who live in the apartment taking into account the right granted under social rental agreement.
Article 80 of the RF Housing Code. Temporary residents
Article 80 of the Code gives the tenant of a residential premises under a social tenancy agreement the right to move temporary residents into this residential premises.
1. Rules on temporary residents established in Art. 80 of the Code, reproduce most of the provisions of Art. 680 of the Civil Code of the Russian Federation, containing similar norms.
Temporary residents should be understood as all other citizens, in addition to the tenant and members of his family living together with him (moved into the residential premises according to the rules of Article 70 of the Code), regardless of the presence of family relations with the tenant. Temporary residents, unlike subtenants, live in residential premises free of charge, i.e. do not pay fees for the use of residential premises. However, this does not mean that civil relations between the tenant and temporary residents cannot be settled contractually. For example, these persons have the right to enter into an agreement for the free use of residential premises according to the rules established by Art. Art. 689 - 701 Civil Code of the Russian Federation. It must be borne in mind that temporary residents are not exempt from paying for utilities.
The move-in of temporary residents is possible subject to two conditions: a) mutual consent (i.e., unanimity on this issue) of the tenant and his family members living with him; b) prior notice to the lessor.
The Code does not impose formal requirements for notifying the landlord. It seems that it is most advisable to carry out such notification in writing, since in the future the corresponding document may have evidentiary value.
A novelty compared to the 1983 Housing Code is the rule that the landlord has the right to prohibit the residence of temporary residents if, after their occupancy, the total area of the relevant residential premises per one family member and temporary residents is less than the accounting norm for a separate apartment, and for communal apartment - less than the provision norm (for the specified living space norms, see Article 50 of the Code). Let us remind you that the total area of a residential premises does not include the area of balconies, loggias, verandas and terraces (see Article 15 of the Code). It should be especially noted that the prohibition of temporary tenants in this case is a right, and not an obligation, of the landlord. In this regard, the landlord may still allow temporary residents to live even if the specified rule on living space standards is violated.
It should be assumed that if within a reasonable period of time (i.e., objectively necessary for making the appropriate decision) after receiving the notification, the landlord did not prohibit the residence of temporary residents, then the condition of notifying the landlord can be considered fulfilled. In this case, the tenant, having received the consent of all family members living with him, has the right to move temporary residents into the premises provided to him.
2. Another novelty of the new Code is the restriction according to which the period of residence of temporary residents cannot exceed six months in a row (Part 2 of Article 80 of the Code). Previously, such a deadline was not provided; only the rule was in effect that the move-in of temporary residents for a period of more than one and a half months is allowed subject to the established norm of living space (Part 2 of Article 81 of the 1983 Housing Code).
3. From the moment such tenants move in, the tenant assumes responsibility for their actions to the landlord, because temporary residents are not a party to the social tenancy agreement, i.e. The tenant is always responsible for their actions to the landlord.
4. The commented article imposes on temporary residents the obligation to immediately vacate the premises upon expiration of the period of their stay agreed with the tenant. If a specific period is not agreed upon, then the obligation to vacate the premises must be fulfilled no later than seven days from the date the tenant or a member of his family makes such a demand.
5. If the social tenancy agreement for residential premises into which temporary residents have been moved has been terminated or temporary residents refuse to vacate the residential premises after the expiration of their period of residence or after seven days after warning the tenant, then such temporary residents are subject to eviction in court without the provision of another residential premises.
Rights and responsibilities of temporary residents
Legal acts in force on the territory of the Russian Federation do not imply the emergence of independent rights for a temporary resident, even if the individual has been registered with the authorized bodies at a specific address. In other words, temporary residents only have the right to reside free of charge in the territory of the living space and its use.
The temporary tenant bears all responsibility for damage to property to the tenant, who, in turn, is responsible for all actions performed on the territory of the residential premises to the landlord.
Of course, the rights of temporary residents also imply the emergence of certain responsibilities. In particular, citizens belonging to this category are obliged to comply with the conditions of community life and the use of common property.
In addition, the key responsibility of the subject of legal relations is that he must leave the occupied premises (even if registration has been carried out) within the time period strictly fixed by the legislator.
Commentary on Article 680 of the Civil Code of the Russian Federation
1. This article introduces the concept of so-called temporary residents and the conditions for their living in rented residential premises.
To move temporary residents into the premises, the general consent of the tenant and the citizens living with him is required. It is drawn up in writing and given to the landlord as prior notice. Thus, if at least one of the permanent residents disagrees with the temporary provision of housing, moving in a temporary resident is impossible. The condition for temporary residence is that it is free of charge. That is, users do not pay for the use of the premises and the utilities provided.
2. The restriction on living space standards applies in this case only partially. The article states that in case of violation of these norms, the landlord may not allow temporary residence. However, he is not obliged to impose a ban. It appears that the decision will be made based on specific circumstances.
Since temporary residents do not receive the right to independently use the premises, responsibility for their actions rests with the tenant.
3. The period of temporary residence cannot exceed 6 months. Upon expiration, they are required to vacate the premises. The specific period of release is agreed upon with the tenant and permanent residents. If no time limit is agreed, the temporary occupant must vacate the premises within 7 days of any permanent occupant making a request to do so.
Eviction of temporary residents
Eviction of temporary residents, even if the individual has been registered at the residential address, can occur in the following cases if:
- the social tenancy agreement has terminated;
- the period of residence of the temporary tenant, initially agreed upon with him, has expired;
- the tenant or a member of his family made demands to leave the living space in the absence of an agreed period.
If temporary residents refuse to voluntarily leave the property, eviction will be carried out by decision of a judicial authority.
Author of the article
According to Art. 80 of the Housing Code of the Russian Federation, temporary residents are considered to be citizens moved in by the tenant of a residential premises and members of his family for temporary free residence in a residential premises. The new tenant is not equal in status to members of the employer's family. This means that he does not enter into housing legal relations with the landlord (owner) of the premises. The difference between the status of temporary residents and subtenants is as follows: subtenants enter into a sublease agreement with the tenant, and temporary residents do not enter into any agreement; subtenants use residential premises on a reimbursable basis, and temporary residents do not have the obligation to pay for residential premises; for concluding a sublease agreement and moving in a subtenant, the consent of the landlord is required, but for temporary moving in it is not required; Unlike temporary accommodation, the period of residence under a sublease agreement can exceed six months. A temporary tenant does not have independent rights and obligations, and, accordingly, is not responsible to the landlord. But the fact of moving in imposes additional obligations on the tenant of the premises under a social tenancy agreement. Firstly, the tenant must notify the landlord in advance about moving in. After all, the landlord has the right to prohibit the residence of temporary residents if, after their occupancy, the total area of living space for each resident is less than the accounting norm for an individual apartment, and less than the provision norm for a communal apartment. If the tenant does not know about the accounting norm or the procedure for calculating it based on the number of people living in the residential premises, the landlord indicates the impossibility of moving in with reference to Art. 80 Housing Code of the Russian Federation. Secondly, after a temporary tenant has moved in, the tenant continues to be responsible for paying utility bills and paying fees for the use of the residential premises, as well as for carrying out routine repairs to the housing. Moreover, it is the tenant who bears full responsibility for the use of housing for its intended purpose by the temporary resident, for his compliance with sanitary, fire, environmental standards and regulations, etc.
Thus, housing legal relations develop along the chain “landlord – tenant – temporary tenant”, while the landlord is a kind of intermediary and connecting link, without which such legal relations are directly impossible. Unlike a temporary tenant, members of the tenant's family live with the tenant permanently and have independent status. A special feature of the relationship between a temporary resident and a tenant is its temporary nature. Temporary residents cannot occupy the tenant's living space for more than six months in a row (clause 2 of article 80 of the RF Housing Code, paragraph 1 of article 680 of the Civil Code of the Russian Federation). Residents are required to vacate the premises immediately after the expiration of the period agreed with them, and if it is not agreed upon, no later than 7 days from the date of presentation of the requirement to leave. A temporary tenant can be required to leave not only by the employer, but also by any member of his family living with him in the residential premises. If an eviction dispute arises, the court may require such a request to be made in writing. However, usually an oral demand is sufficient, since the law does not say anything about the form of its presentation. If necessary, in court, an interested person can refer to witness testimony. In case of refusal to vacate voluntarily, the tenant or members of his family have the right to demand the eviction of temporary residents without the provision of other living quarters. In the event of termination of a social tenancy agreement and the eviction of the tenant and members of his family, the landlord has the right to directly present a demand for eviction without providing residential premises to the temporary tenant himself.
Example. By the decision of the Avtozavodsky District Court of the city of Nizhny Novgorod dated August 9, 2006, upheld by the cassation court, citizen M.V. Maltseva, mother of minor A.A. Maltseva, was evicted from the occupied residential premises without the provision of other residential premises. The court found that M.V. Maltseva, being a temporary tenant, was subject to eviction because she had not acquired the right to use the disputed residential premises (for more details, see the Determination of the Constitutional Court of the Russian Federation of April 19, 2007 N 260-О-О). From the above it follows that the eviction of a temporary tenant from the residential premises he occupies is possible: upon termination of the rights of the tenant, subtenant or owner of the residential premises, regardless of the reasons for such termination; in case of expiration of a period of residence equal to six consecutive months; in the absence of consent of the tenant, subtenant, owner or members of his family for the further residence of the temporary tenant and the corresponding demand is submitted by the tenant or a member of his family living with him (usually within 7 days). If temporary residents refuse to vacate the residential premises, temporary residents are subject to eviction from the residential premises in court without the provision of another residential premises (Clause 5 of Article 80 of the Housing Code of the Russian Federation). Any sublease agreement is a fixed-term agreement. The period of its validity may end due to the expiration of the time for which it was concluded and which is specified in the contract. In the text of the agreement, the duration of its validity can be indicated in various ways, for example: “The agreement is valid until March 1, 2010,” or “The duration of the agreement is 1 year,” or “The agreement is concluded for an indefinite period and can be terminated by agreement of the parties.” According to Part 3 of Art. 77 of the Housing Code of the Russian Federation, a sublease agreement in which the validity period is not specified is considered to be concluded for one year. If the sublease agreement does not directly indicate the period of its validity, then the subtenant or tenant of the property is obliged to notify the other party of termination of the agreement 3 months in advance. A residential sublease agreement is a transaction derived from the main contract - a social tenancy agreement for residential premises. Therefore, the sublease agreement for residential premises provided under a social tenancy agreement is also terminated upon termination of the main tenancy agreement, regardless of the reasons for the termination of the latter. A residential sublease agreement provided under a social tenancy agreement may be terminated by agreement of the parties or if the subtenant fails to comply with the terms of the residential sublease agreement. For example, the grounds for eviction of a subtenant may be the use of residential premises for other purposes or systematic violation of the rights and legitimate interests of neighbors (Clause 4 of Article 79 of the Housing Code of the Russian Federation). The subtenant has the right to terminate the sublease agreement early at any time. The reasons for such termination have no legal significance. The procedure for terminating a sublease agreement at the initiative of the employer in practice is quite time-consuming. Before filing a lawsuit to terminate a sublease agreement, the employer must send a warning to the subtenant about his violation of the terms of the agreement, after which the period necessary to eliminate the violations must expire. If the claim is satisfied, the subtenant and his family members are subject to eviction without the provision of other housing. Administrative or other extrajudicial eviction procedures are unacceptable. Thus, eviction of a subtenant is possible due to the following circumstances: termination of the rental agreement, which entails the termination of relations with the subtenant; expiration of the sublease agreement; early termination of the sublease agreement; termination by agreement of the parties; termination of a sublease agreement in court if the subtenant fails to comply with the terms of the agreement.
Tags: living quarters, eviction
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